A-863-85
Canadian Pacific Limited (Applicant)
v.
Canadian Human Rights Commission, Peter Cum
ming and Wayne Mahon (Respondents)
INDEXED AS: CANADIAN PACIFIC LTD. V. CANADA (CANADIAN
HUMAN RIGHTS COMMISSION)
Court of Appeal, Pratte, Marceau, and Hugessen
JJ.—Montréal, March 30; Ottawa, June 16, 1987.
Human rights — Refusal by railway to hire insulin depen
dent diabetic as trackman — Human Rights Tribunal holding
refusal not based on bona fide occupational requirement —
Application to review Tribunal's finding risks not sufficiently
great as to justify refusal to hire — Application allowed —
Tribunal applying wrong standard — Job-related require
ment bona fide occupational requirement if reasonably neces
sary to eliminate sufficient risk of serious damage — `Suffic-
iency" standard referring to reality of risk, not degree.
This is a section 28 application to review and set aside the
decision of a Human Rights Tribunal that the applicant,
Canadian Pacific Limited, had engaged in a discriminatory
practice by refusing to hire the respondent, Mahon, as a
trackman because he was an insulin dependent diabetic.
Canadian Pacific argued that the refusal was based on a "bona
fide occupational requirement" authorized by paragraph 14(a)
of the Canadian Human Rights Act. The Tribunal found that
there was "some added risk to employing an insulin dependent
diabetic as trackman". It went on to conclude however that the
risks involved in employing a stable diabetic such as the
respondent were not sufficiently great to warrant the refusal to
hire. The applicant raised four arguments attacking the manner
in which the Tribunal made that finding, including the argu
ment that the Tribunal applied a wrong standard when it held
that a bona fide occupational requirement relating to safety
had to increase safety by a substantial amount.
Held, the application should be allowed.
Per Pratte J. (Hugessen J. concurring): The Tribunal applied
a wrong standard when it concluded that a bona fide occupa
tional requirement relating to safety must necessarily increase
safety substantially and that an employer's requirement that
merely eliminates a small risk of serious damage cannot qualify
as a bona fide occupational requirement. The decision of the
Supreme Court of Canada in Ontario Human Rights Commis
sion et al. v. Borough of Etobicoke, [1982] 1 S.C.R. 202, is
authority for the proposition that a requirement imposed by an
employer in the interest of safety must, in order to qualify as a
bona fide occupational requirement, be reasonably necessary in
order to eliminate a sufficient risk of damage. In Bhinder et al.
v. Canadian National Railway Co. et al., [1985] 2 S.C.R. 561,
the Supreme Court upheld as a bona fide occupational require
ment one which, if not complied with, would expose the
employee to a "greater likelihood of injury—though only slight
ly greater". The effect of those decisions is that, a fortiori, a
job-related requirement that, according to the evidence, is
reasonably necessary to eliminate a real risk of serious damage
to the public must be said to be a bona fide occupational
requirement. Once the Tribunal found that the applicant's
policy not to employ insulin dependent diabetics as trackmen
was reasonably necessary to eliminate a real risk of serious
damage to the applicant, its employees and the public, there
was only one decision it could legally make, namely, that the
refusal to engage the respondent was based on a bona fide
occupational requirement and, therefore, did not constitute a
discriminatory practice.
The Tribunal made an error in not considering the possibility
that the respondent might not at all times have sugar with him
as protection against a possible hypoglycemic reaction. It was,
however, unnecessary to determine whether such an error justi
fied court intervention in view of the finding, supra, that the
Tribunal had applied a wrong standard. It was for the same
reason, unnecessary to determine the merits of the applicant's
argument that the Tribunal erroneously found that the odds
were 10,000 to one against the respondent having a severe
reaction at a time he, his co-workers or the public might suffer
injury. Finally, whether the evidence disclosed that there was a
substantial risk involved in employing insulin dependent diabet
ics as trackman was a question of fact which tin Court did not
have the power to decide.
Per Marceau J.: The phrase "sufficient risk of employee
failure", used by McIntyre J. in the Etobicoke case means that
the evidence must be sufficient to show that the risk is real and
not based on mere speculation. The "sufficiency" contemplated
refers to the reality of the risk, not its degree. By interpreting
paragraph 14(a) of the Canadian Human Rights Act as it did,
the Tribunal was attributing it a scope and intent which it does
not have.
Moreover, the Bhinder decision teaches that the proper
approach to verify whether an occupational requirement,
adopted in good faith for the sake of safety, meets the objective
test of paragraph 14(a) as set out in Etobicoke, is to look into
the duties to be performed and the conditions demanded for
their proper performance and then to compare those require
ments against the capabilities and limitations of the class of
persons affected. The Tribunal first found that the diminution
of certain physical attributes required for the position of track-
man might "put an employee, co-workers, and the general
public at greater risk in terms of safety". It found, in a second
step, that even stable diabetics, like the respondent, Mahon,
could suffer such a diminution, a possibility which was "real
... and not farfetched or fanciful". Those two findings led to
the unavoidable conclusion that the policy not to hire insulin
dependent diabetics was based on a bona fide occupational
requirement. In going further by assessing the respondent's
physical attributes and determining that notwithstanding his
being an insulin dependent diabetic, his limitations, although
real, were under sufficient control, the Tribunal moved away
from the teachings of Bhinder which rejected such an individu
alized approach to paragraph 14(a).
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Human Rights Act, S.C. 1976-77, c. 33, ss.
3(1) (as am. by S.C. 1980-81-82-83, c. 143, s. 2), 7(a),
14(a) (as am. idem, s. 7), 39 (as am. idem, s. 19).
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
CASES JUDICIALLY CONSIDERED
FOLLOWED:
Bhinder et al. v. Canadian National Railway Co. et al.,
[1985] 2 S.C.R. 561.
APPLIED:
Ontario Human Rights Commission et al. v. Borough of
Etobicoke, [1982] 1 S.C.R. 202.
COUNSEL:
Marc Shannon for applicant.
René Duval for respondents.
David Baker for Coalition of Provincial
Organizations of the Handicapped and the
Canadian Diabetes Association.
SOLICITORS:
Legal Department, Canadian Pacific Limited,
Montréal, for applicant.
Legal Department, Canadian Human Rights
Commission, Ottawa, for respondents.
David Baker, Toronto, for Coalition of Pro
vincial Organizations of the Handicapped and
the Canadian Diabetes Association.
The following are the reasons for judgment
rendered in English by
PRATTE J.: This is an application under section
28 of the Federal Court Act [R.S.C. 1970 (2nd
Supp.), c. 10] to review and set aside a decision
rendered by a Human Rights Tribunal appointed
under section 39 of the Canadian Human Rights
Act [S.C. 1976-77, c. 33 (as am. by S.C. 1980-81-
82-83, c. 143, s. 19)] in respect of a complaint
filed by the respondent, Wayne Mahon.
The substance of that complaint, which was
found by the Tribunal to be substantiated, was
that the applicant, Canadian Pacific Limited, had
engaged in a discriminatory practice within the
meaning of paragraph 7(a) and subsection 3(1)
[as am. by S.C. 1980-81-82-83, c. 143, s. 2] of the
Canadian Human Rights Act by refusing to
employ Mr. Mahon as a trackman for the sole
reason that he was a diabetic who had to take
daily injections of insulin.' The position of Canadi-
an Pacific Limited before the Tribunal was that its
refusal to employ Mr. Mahon was not a dis
criminatory practice since it was "based on a bona
fide occupational requirement" and authorized by
paragraph 14(a) of the Act [as am. idem, s. 7]. 2
The whole debate before the Tribunal, therefore,
turned on the applicability of paragraph 14(a) to
the circumstances of the case: Was it a bona fide
requirement that persons employed as trackmen by
Canadian Pacific Limited should not be insulin
dependent diabetics?
In order to enable the Tribunal to answer that
question, much evidence was adduced. Some of it
related to the nature of the work done by track-
men. It showed, according to the Tribunal's find
ings, that
'Subsection 3(1) and paragraph 7(a) of the Canadian
Human Rights Act read as follows:
3. (1) For all purposes of this Act, race, national or ethnic
origin, colour, religion, age, sex, marital status, family status,
disability and conviction for which a pardon has been grant
ed are prohibited grounds of discrimination.
7. It is a discriminatory practice, directly or indirectly,
(a) to refuse to employ or continue to employ any
individual ...
on a prohibited ground of discrimination.
2 That paragraph reads as follows:
14. It is not a discriminatory practice if
(a) any refusal, exclusion, expulsion, suspension, limita
tion, specification or preference in relation to any employ
ment is established by an employer to be based on a bona
fide occupational requirement;
... the position of "section man" or "track man" within the
Respondent's business operation is one that requires certain
physical attributes, specifically, alertness, strength, and dexteri
ty, and that any diminution of these attributes in an individual
in the work environment may put an employee, co-workers, and
the general public at greater risk in terms of safety. As well, the
property of the Respondent would be at greater risk.
The rest of the evidence was mostly of a medical
nature. Doctors explained the nature of diabetes
and the risks of employing insulin dependent dia
betics. One of those experts had examined the
complainant and testified as to his state of health.
Diabetes is an illness that is characterized by the
inability of the human body to assimilate the sugar
that is present in the blood. In order to survive, the
human body needs sugar. Sugar is present in the
blood but cannot be assimilated unless there also
be present a sufficient quantity of insulin, a sub
stance which is normally produced by the pan
creas. If the pancreas does not produce insulin in
sufficient quantities, the body cannot assimilate all
the sugar it needs: that is diabetes.
In some persons, the pancreas does not produce
any insulin at all and they must, in order to
survive, take daily injections of insulin. That is the
case of all insulin dependent diabetics and, in
particular, of Mr. Mahon. A daily injection of
insulin is for them a necessity. But it also presents
a danger. A balance must always be maintained
between the respective quantities of insulin and
sugar that are present in the blood since, if there is
too much insulin, the person in question will suffer
a hypoglycemic reaction. That kind of reaction
first manifests itself by mild symptoms like weak
ness, blurring of vision, perspiration and tingling of
the hands. During that first stage, which normally
lasts approximately fifteen minutes, the reaction
may easily be stopped if the subject eats a suffi
cient quantity of sugar to re-establish a proper
balance within his system. That is the reason why
insulin dependent diabetics must always have
sugar with them. If the reaction is not stopped at
that early stage, it quickly becomes more severe
and degenerates into what is called a neuroglyco-
penic reaction which affects the central nervous
system and manifests itself by disorientation, loss
of co-ordination, dizziness, confusion, lack of good
judgment and, ultimately, loss of consciousness.
Once the reaction has reached this second stage,
the victim needs help.
A severe neuroglycopenic reaction is normally
preceded by a mild reaction. That is not invariably
the case. It may sometimes occur without warning.
If there is a risk in employing insulin dependent
diabetics, it does not come directly from their
illness but, rather, from the fact that they take
insulin. It is the taking of insulin that makes them
susceptible to hypoglycemic reactions. Some dia
betics, however, can, more easily than others, con
trol their illness and maintain a proper balance of
the insulin and sugar in their system. For that
reason they are less likely to experience severe
hypoglycemic reactions. They are called stable
diabetics. Mr. Mahon is one of them. There is
always a possibility, however, that even a stable
diabetic will, on occasion, experience mild hypo
glycemic reactions; there is also a possibility that a
stable diabetic may experience a sudden severe
neuroglycopenic reaction. The findings of the Tri
bunal on this point read as follows:
Second, the medical evidence establishes that even in respect
of a so-called "stable diabetic" there is a reasonable probability
that there will be, on occasion, a hypoglycemic reaction in the
work environment. Indeed, this is true of the employment
experience of Mr. Mahon. However, a hypoglycemic reaction
which consists only of adrenergic symptoms is controllable by
the diabetic who has preplanned for the contingency by ensur
ing quick access to sugar. Third, the medical evidence estab
lishes that there is a possibility (but not probability) that Mr.
Mahon may, on the occasion of a hypoglycemic reaction in the
work environment, have a neuroglycopenic reaction without
first having adrenergic symptoms. In such event, Mr. Mahon
would not be able to take preventive measures to stave-off the
neuroglycopenic reaction (there being no warning symptoms).
Hence, Mr. Mahon's alertness, strength and dexterity would
deteriorate or fail, and depending upon the specific, given
situation he then found himself in within the context of his
work environment, he, his co-workers, and the general public
might be a greater risk than otherwise.
The possibility of a neuroglycopenic reaction in Mr. Mahon's
case is real but unlikely, given the evidence of the medical
experts, Drs. Joron and Reynolds (and supported by the medi
cal literature), which I accept. It is not farfetched or fanciful.
Their evidence is unequivocally that stable diabetics like Mr.
Mahon can unpredictably proceed to a neuroglycopenic reac
tion. Hence, their evidence suggests unequivocally that C.P.R.'s
railway operation is more likely to be safer if insulin dependent
diabetics are not hired as track men. The increase in "safety"
through C.P.R.'s employment requirement is marginal but real.
The Tribunal decided that the requirement that
a trackman be not an insulin dependent diabetic
was not a bona fide occupational requirement.
After referring to the decision of the Supreme
Court of Canada in Ontario Human Rights Com
mission et al. v. Borough of Etobicoke, [ 1982] 1
S.C.R. 202, the Tribunal concluded that, even if
the refusal to employ unstable diabetics might be
justified, the risks involved in employing a stable
diabetic like Mr. Mahon were not sufficiently
great to warrant the refusal of Canadian Pacific
Limited to employ him.
The Tribunal's decision, therefore, assumes that
it is possible for an employer to readily distinguish,
among insulin dependent diabetics, those that are
stable from those that are not. The applicant does
not challenge that assumption. It attacks the
Tribunal's decision on grounds that relate to the
manner in which the Tribunal determined that the
risks involved in employing stable diabetics as
trackmen were not sufficiently great to warrant
the refusal to employ them. The applicant says
that, in making that determination, the Tribunal
(a) failed to consider relevant evidence;
(b) based itself on the wrong finding that the
odds were 10,000 to one against Mr. Mahon
having a severe neuroglycopenic reaction at a time
when he, his co-workers or the public might suffer
injury;
(c) applied a wrong standard when it held or
assumed that a bona fide occupational require
ment relating to safety had to increase safety by a
substantial amount; and
(d) erred in failing to hold that the requirement
here in question increased safety significantly and,
for that reason, was a bona fide occupational
requirement.
Before considering these attacks, a few observa
tions are necessary.
In the Etobicoke case supra, which involved the
forced retirement of an employee, the Supreme
Court stated that, under the Ontario Human
Rights Code, once a complainant has established a
prima facie case of discrimination, he is entitled to
relief unless the employer proves justification.
When the justification is that the refusal to employ
was based on a bona fide occupational require
ment, the employer has the onus of proving that
justification "according to the ordinary civil stand
ard of proof'. Mr. Justice McIntyre had then this
to say with respect to bona fide occupational
requirements [at pages 208-212]:
Two questions must be considered by the Court. Firstly, what
is a bona fide occupational qualification and requirement
within s. 4(6) of the Code and, secondly, was it shown by the
employer that the mandatory retirement provisions complained
of could so qualify? In my opinion, there is no significant
difference in the approaches taken by Professors Dunlop and
McKay in this matter and I do not find any serious objection to
their characterization of the subjective element of the test to be
applied in answering the first question. To be a bona fide
occupational qualification and requirement a limitation, such
as a mandatory retirement at a fixed age, must be imposed
honestly, in good faith, and in the sincerely held belief that
such limitation is imposed in the interests of the adequate
performance of the work involved with all reasonable dispatch,
safety and economy, and not for ulterior or extraneous reasons
aimed at objectives which could defeat the purpose of the Code.
In addition it must be related in an objective sense to the
performance of the employment concerned, in that it is reason
ably necessary to assure the efficient and economical perform
ance of the job without endangering the employee, his fellow
employees and the general public.
The answer to the second question will depend in this, as in
all cases, upon a consideration of the evidence and of the nature
of the employment concerned. As far as the subjective element
of the matter is concerned, there was no evidence to indicate
that the motives of the employer were other than honest and in
good faith in the sense described. It will be the objective aspect
of the test which will concern us.
In an occupation where, as in the case at bar, the employer
seeks to justify the retirement in the interests of public safety,
to decide whether a bona fide occupational qualification and
requirement has been shown the board of inquiry and the court
must consider whether the evidence adduced justifies the con
clusion that there is sufficient risk of employee failure in those
over the mandatory retirement age to warrant the early retire
ment in the interests of safety of the employee, his fellow
employees and the public at large.
It would be unwise to attempt to lay down any fixed rule
covering the nature and sufficiency of the evidence required to
justify a mandatory retirement below the age of sixty-five
under the provisions of s. 4(6) of the Code. In the final analysis
the board of inquiry, subject always to the rights of appeal
under s. 14d of the Code, must be the judge of such matters.
In the present case, as in the Etobicoke case, the
subjective element of the requirement in question
did not raise any difficulty. The only question to
be resolved was whether the evidence adduced
justified the conclusion that there was "a sufficient
risk of employee failure" among insulin dependent
trackmen to warrant the refusal of Canadian
Pacific Limited to hire them. That question was a
question of fact. The applicant is, therefore,
attacking what is in essence a finding of fact. Such
a finding is not normally reviewable under section
28 of the Federal Court Act. In order to succeed,
the applicant must, therefore, either show that the
Tribunal erred in law or that it based its decision
on an erroneous finding of fact made in the
manner described in paragraph 28(1)(c) of the
Federal Court Act. The applicant cannot ask the
Court to review the evidence and substitute its
opinion for that of the Tribunal on the question it
determined. For that reason, the last attack made
by the applicant against the decision of the Tri
bunal need not be considered. Whether or not the
evidence disclosed that there was a substantial risk
involved in employing insulin dependent diabetics
as trackmen was a question of fact that the Tri
bunal had to determine and that this Court does
not have the power to decide.
I now turn to the other three points raised by the
applicant.
1. THE FAILURE OF THE TRIBUNAL TO CONSIDER
RELEVANT EVIDENCE
The Tribunal makes clear in its decision that, in
its view, the only real risk involved in employing an
insulin dependent diabetic like Mr. Mahon as a
trackman arises from the possibility that a stable
diabetic might suddenly experience a severe neuro-
glycopenic reaction. The Tribunal did not attach
any importance to the possibility that the
employee might suffer a mild hypoglycemic reac
tion at a time when, due to his negligence or
another reason beyond his control, he did not have
sugar with him and could not, for that reason,
prevent the reaction from degenerating into a
severe incapacitating reaction.
On this subject, the Tribunal merely said this:
Moreover, Mr. Mahon must also keep sugar on his person (or
ensure that he has quick access to it otherwise) as protection in
respect of a possible hypoglycemic reaction. This again is easily
within his control. An employer cannot say that because an
employee may be negligent in not having sugar available, he
will not be hired. Another prospective employee may negligent
ly forget to bring to work his corrective eyeglasses, with dire
consequences. Another employee may be negligent in not
having an allergy shot, which causes him to function poorly.
Mr. Mahon should not be precluded from employment on the
basis that he hypothetically may be negligent in respect of
something he is to do (having sugar on his person) which is
easily within his control.
The applicant says that the Tribunal erred in
failing to take into consideration the possibility
that Mr. Mahon might not at all times have sugar
with him. I agree with that criticism. In assessing
the risks involved in employing Mr. Mahon as a
trackman, the Tribunal had to take into consider
ation all possibilities. It could not, as it appears to
have done here, exclude some of them.
Is this error of the Tribunal such as to permit
this Court to intervene under section 28 of the
Federal Court Act? This difficult question would
have to be answered if the Tribunal's decision were
not vitiated by any other error. However, as will be
seen, such is not the case.
2. THE TRIBUNAL WRONGLY FOUND THAT THE
ODDS WERE 10,000 TO ONE AGAINST MR.
MAHON HAVING A SEVERE REACTION AT A
TIME WHEN HE, HIS CO-WORKERS OR THE
PUBLIC MIGHT SUFFER INJURY
In trying to assess the risks arising from the
possibility that a stable diabetic like Mr. Mahon
might have a sudden severe hypoglycemic reaction,
the Tribunal expressed itself in the following
terms:
However, there is the slight possibility that Mr. Mahon may
have a neuroglycopenic reaction without first having an adren-
ergic reaction. Such an event is beyond his control and cannot
be prevented. This poses an added risk to Mr. Mahon, his
prospective employer, co-workers and the general public. How
does one quantify the added degree of risk? Given the evidence
in this case, I would infer that the odds are in the nature of at
least 500 to 1 against the possibility of Mr. Mahon having a
neuroglycopenic reaction (without first having an adrenergic
reaction) at any time. Moreover, I would estimate that from a
working time standpoint, five per cent of Mr. Mahon's working
time, at most, might constitute situations where, if he had a
neuroglycopenic reaction, he might endanger himself, his
co-workers, or the public.
Making such inferences from the evidence, we are left with
an individual as a Complainant who has at most a .2 per cent
chance of ever having a neuroglycopenic reaction due to events
beyond his control, which would have to occur specifically
within about five percent of his working time for his debilita
tion due to the reaction to constitute any danger to persons or
property. That is, the odds are roughly some 10,000 to 1
against Mr. Mahon (given no other changes in his health)
having a neuroglycopenic reaction during a situation where he,
co-workers or the public might suffer injury. Does his disability
therefore constitute a "sufficient" risk?
It is impossible to find support in the evidence
for the figures used by the Tribunal in that pas
sage. Does it follow that the decision is bad?—Not
necessarily. The answer would probably be affir
mative if the Tribunal had based its decision on
those wrong figures; the answer would clearly be
negative if the Tribunal had, in using those figures,
merely tried to express in mathematical terms its
opinion that the risk disclosed by the evidence,
while real, was not substantial. It is not easy to
choose between those two possibilities. Neither is it
necessary since the examination of the applicant's
third ground of attack will disclose that the Tri
bunal made another serious error which clearly
vitiates its decision.
3. THE TRIBUNAL APPLIED A WRONG STANDARD
IN DETERMINING WHETHER THERE WAS A
BONA FIDE OCCUPATIONAL REQUIREMENT
In the course of its decision, the Tribunal said
this:
The mere presence of some safety risk cannot result in the
denial of an employment position to a disabled applicant. Every
human activity involves some risks. Moreover, everything else
being equal, it cannot be asserted that a slight increase in risk
through employing a disabled person should be considered
unacceptable by an employer. For example, persons confined to
wheel chairs would presumably take longer on average to
evacuate a tall office building in the event of a fire. Notwith
standing that added risk to such persons, few people would
argue that employers could for this reason alone deny employ
ment opportunities to persons confined to wheel chairs.
Inherent to the term "sufficient risk" is a two-fold approach
in making a decision. First, the evidence will suggest the
likelihood of the risk being realized and the possibility of injury
and damage that might result in such eventuality. I have
already concluded that there is some added risk to employing
an insulin dependent diabetic as a trackman.
However, it is very difficult to quantify the added degree of
risk in a situation as the one at hand.
A decision on "sufficient risk" really involves two determina
tions: first, an evaluation of the factual evidence as to the
probability of accident and injury/damage due to the disability
as I have attempted to do; and second, a judgmental decision as
to whether the level of risk to safety is acceptable or not. An
"insufficient risk" will not constitute a b.f.o.r. defence for the
employer. Human rights legislation, with its objective of
"equality of opportunity" is based upon the fundamental values
of our society. Everyone is entitled to recognition of his and her
inherent dignity as a person, with the right to "equality of
opportunity" in being free to self-development and self-realiza
tion. Society must accept some added risks in exchange for the
benefits conferred upon the disabled in enhancing their freedom
to truly achieve equality of opportunity. Moreover, all of
society generally benefits indirectly in the enhancement of core
values in respect of such a minority group.
The Tribunal thereafter mentioned the fact that
insulin diabetics are allowed to drive cars in spite
of the fact that some statistics show that they are
involved in more accidents that other drivers and
proceeded to say:
In referring to this, I do not at all suggest that stable
diabetics not be allowed to hold drivers' licences. I simply point
out that society is quite prepared, on a balancing of costs and
benefits, to accept the increased risk of stable diabetics like Mr.
Mahon driving motor vehicles.
The Tribunal then concluded:
In my opinion, considering all the evidence, applying the
framework for analysis established by the Supreme Court in
Etobicoke, and keeping in mind the objective of "equality of
opportunity" of the Canadian Human Rights Act, the employ
er's requirement that no person who is an insulin dependent
diabetic (and specifically, the Complainant) can be employed
as a trackman is not a bona fide occupational requirement
within the meaning of paragraph 14(a) of the Act.
In the applicant's submission, these passages of
the decision disclose a fundamental error, namely,
that a bona fide occupational requirement relating
to safety must necessarily increase safety substan
tially and that an employer's requirement that
merely eliminates a small risk of serious damage
cannot qualify as a bona fide occupational require
ment. In support of its argument, the applicant
refers to the decision of the Supreme Court of
Canada in Bhinder et al. v. Canadian National
Railway Co. et al., [1985] 2 S.C.R. 561, where, it
is said, a requirement that reduced risk of injury
by a small amount was recognized as a bona fide
occupational requirement.
I find merit in that argument.
The decision of the Supreme Court of Canada in
Etobicoke is authority for the proposition that a
requirement imposed by an employer in the inter
est of safety must, in order to qualify as a bona
fide occupational requirement, be reasonably
necessary in order to eliminate a sufficient risk of
damage. In Bhinder, on the other hand, the
Supreme Court upheld as a bona fide occupational
requirement one which, if not complied with,
would expose the employee to a "greater likelihood
of injury—though only slightly greater" (at page
584). The effect of those decisions, in my view, is
that, a fortiori, a job-related requirement that,
according to the evidence, is reasonably necessary
to eliminate a real risk of a serious damage to the
public at large must be said to be a bona fide
occupational requirement.
The decision under attack, it seems to me, is
based on the generous idea that the employers and
the public have the duty to accept and assume
some risks of damage in order to enable disabled
persons to find work. In my view, the law does not
impose any such duty on anyone. The error com
mitted by the Tribunal in this case is comparable
to that which had been committed in the Bhinder
case where the Tribunal had wrongly decided that
the job requirement there in question was not a
bona fide occupational requirement for the reason
that the employer had the duty to accommodate
his employee's religion.
Once it had been found that the applicant's
policy not to employ insulin dependent diabetics as
trackmen was reasonably necessary to eliminate a
real risk of serious damage for the applicant, its
employees and the public, there was only one
decision that the Tribunal could legally make,
namely, that the applicant's refusal to engage the
respondent Wayne Mahon was based on a bona
fide occupational requirement and, as a conse
quence, was not a discriminatory practice.
I would, for these reasons, allow the application,
set aside the decision under attack and refer the
matter back to the Tribunal for decision on the
basis that, in view of the findings it has already
made as to the risks of hiring insulin dependent
diabetics as trackmen, the only conclusion that can
legally be drawn is that the applicant's refusal to
hire the respondent Wayne Mahon was based on a
bona fide occupational requirement and, as a
consequence, was not a discriminatory practice.
HUGESSEN J.: I agree
* * *
The following are the reasons for judgment
rendered in English by
MARCEAU J.: This application appears to me to
be well founded. In my respectful opinion, the way
the Tribunal conducted its inquiry and drew its
conclusion reveals, on its part, a misconception of
what may constitute a "bona fide occupational
requirement" under paragraph 14(a) of the
Canadian Human Rights Act and its decision
should not be allowed to stand. My disagreement
with the Tribunal's understanding is twofold.
1—The Tribunal, in its lenghty reasons, explains
carefully that on the basis of the thorough evi
dence put before it—evidence pertaining essential
ly to the requirements of the job of trackman and
the physical impairments of an insulin dependent
diabetic—it had no difficulty asserting that
"C.P.R.'s railway operation is more likely to be
safer if insulin dependent diabetics are not hired as
track men". The Tribunal, however, saw this as
only the starting point and went on to try to
evaluate how much safer the operation would actu
ally be, so as to ascertain whether the risk to safety
was "sufficiently" increased to justify the policy of
refusing to hire diabetics like Mr. Mahon for
trackman positions. A sort of a balancing of the
greater risk to the public against the advantage
diabetics could derive from being given the same
opportunity as non-diabetics was being attempted.
Hence, the Tribunal's refusal to take into consider
ation the possibility that a diabetic trackman
might be without the sugar required to counteract
an hypoglycemic reaction on the ground that such
eventuality would be the result of negligence and
all employees may be equally negligent on some
work-related aspect. Hence, likewise, the finding
that the odds were 10,000 to one against a diabetic
trackman having a severe reaction at a time when,
he, his co-workers and the public might suffer
injury, the figure having been arrived at, apparent
ly, by taking into account, as one element, the
percentage of people afflicted by the disease in
comparison to the population taken as a whole.
Parliament may one day call upon the public to
sacrifice some of its physical safety in order to give
disabled persons the same work opportunities as if
they were not disabled. But I do not think that
such a policy can be read into the law as it now
stands. This Act is aimed at prohibiting and penal
izing discriminatory practices, the expression being
used in the sense of practices having the effect,
intentional or not, of submitting individuals to
particular and disadvantageous treatment for no
real, appropriate and objective purpose but essen
tially on the basis of an irrelevant characteristic.
The individual who is refused a particular job
because his employment in that job would repre
sent a special risk to the safety of the public is,
certainly, not being discriminated against within
the meaning of the Act. It is true that, in the case
where the problem raised by hiring a disabled
person is strictly of an economic nature, as it
would simply require that special means be taken
to overcome the disadvantage of the disability, a
positive duty to accommodate could be imposed on
the employer and imposing such a duty would be
going beyond simply prohibiting discrimination.
But, as McIntyre J. noted in Bhinder et al. v.
Canadian National Railway Co. et al., [1985] 2
S.C.R. 561, the Act does not yet go that far and in
any event the duty of an employer to accommodate
could hardly be transformed into a duty imposed
on the public to accept greater risk to its safety. It
is also true that, in his reason in Ontario Human
Rights Commission et al. v. Borough of Etobi-
coke, [1982] 1 S.C.R. 202, McIntyre J. used the
words "sufficient risk of employee failure", the
central passage in which the phrase appears read
ing thus (at pages 209-210):
In an occupation where, as in the case at bar, the employer
seeks to justify the retirement in the interests of public safety,
to decide whether a bona fide occupational qualification and
requirement has been shown the board of inquiry and the court
must consider whether the evidence adduced justifies the con
clusion that there is sufficient risk of employee failure in those
over the mandatory retirement age to warrant the early retire
ment in the interests of safety of the employee, his fellow
employees and the public at large.
When I read the phrase in context, however, I
understand it as being related to the evidence
which must be sufficient to show that the risk is
real and not based on mere speculation. In other
words, the "sufficiency" contemplated refers to the
reality of the risk not its degree. Indeed, in Bhin-
der, McIntyre J., in applying the principles he had
set out in Etobicoke, wrote as follows (at pages
587-588):
The appellant has established a prima facie case of discrimi
nation. The onus therefore has passed to the respondent to show
that the hard hat rule is a bona fide occupational requirement.
From a reading of the reasons for decision of the Tribunal it
appears that the test was met. Specifically, the Tribunal found
that the hard hat rule was not a bona fide occupational
requirement as far as it related to Bhinder and, in consequence,
to other Sikhs. In this, they were accepting the appellant's
individual case approach. It is, however, clear from the reasons
and the references made by the Tribunal to the evidence that it
was of the view that, as far as the rule applied to non-Sikhs, it
was a bona fide occupational requirement. It was agreed that
CN adopted the rule for genuine business reasons with no
intent to offend the principles of the Act. The Tribunal found
that the rule was useful, that it was reasonable in that it
promoted safety by reducing the risk of injury and, specifically,
that the risk faced by Bhinder in wearing a turban rather than
a hard hat was increased, though by a very small amount. The
only conclusion that can be drawn from the reasons for decision
is that, but for its special application to Bhinder, the hard hat
rule was found to be a bona fide occupational requirement.
Indeed, it would be difficult on the facts to reach any other
conclusion. [My emphasis.]
By interpreting paragraph 14(a) as it did, the
Tribunal was attributing to the Act a scope and
intent which, in my respectful opinion, it does not
have.
2—It is evident on the record that a great part
of the Tribunal's inquiry was devoted to receiving
extensive evidence on Mr. Mahon's state of health
and, in particular, on his success in managing his
diabetic condition. It is this evidence which
appears to have had the main role in convincing
the Tribunal that the employer's refusal to employ
Mr. Mahon was not based on a bona fide occupa
tional requirement. The reasons for decision do not
leave much doubt in that regard; they even end on
this unequivocal comment (at page 113):
My findings are limited, of course, to the specific complainant
in this case.
Such an individualized approach to paragraph
14(a) of the Act has been, I think, definitely
rejected by the Supreme Court in Bhinder. Here is
what McIntyre J., writing for the majority, had to
say about it (at pages 588-589):
Where a bona fide occupational requirement is established
by an employer there is little difficulty with the application of s.
14(a). Here, however, we are faced with a finding—at least so
far as one employee goes—that a working condition is not a
bona fide occupational requirement. We must consider then
whether such an individual application of a bona fide occupa
tional requirement is permissible or possible. The words of the
Statute speak of an "occupational requirement". This must
refer to a requirement for the occupation, not a requirement
limited to an individual. It must apply to all members of the
employee group concerned because it is a requirement of
general application concerning the safety of employees. The
employee must meet the requirement in order to hold the
employment. It is, by its nature, not susceptible to individual
application. The Tribunal sought to show that the requirement
must be reasonable, and no objection would be taken to that,
but it went on to conclude that no requirement which had the
effect of discriminating on the basis of religion could be
reasonable. This, in effect, was to say that the hard hat rule
could not be a bona fide occupational requirement because it
discriminated. This, in my view, is not an acceptable conclu
sion. A condition of employment does not lose its character as a
bona fide occupational requirement because it may be dis
criminatory. Rather, if a working condition is established as a
bona fide occupational requirement, the consequential discrimi
nation, if any, is permitted—or, probably more accurately—is
not considered under s. 14(a) as being discriminatory.
The Bhinder decision, as I read it, makes it clear
that the proper approach to verify whether an
occupational requirement, adopted in good faith
for the sake of safety, meets the objective test of
paragraph 14(a) as it was set out in the Etobicoke
decision is to look into the duties to be performed
and the conditions demanded for their proper
performance (in the present case that of a track-
man) and then compare those requirements
against the capabilities and limitations of the class
of persons affected (here insulin dependent diabet
ics as a group). The Tribunal here, on the basis of
the evidence, found, in a first step, that the track-
man position required "certain physical attributes"
the diminution of which, in the work environment,
might "put an employee, co-workers, and the gen
eral public at greater risk in terms of safety". It
found, in a second step, that insulin dependent
diabetics, even stable diabetics like Mr. Mahon,
could suffer such a diminution of their physical
(and mental) capacities, a possibility which was
"real ... and not farfetched or fanciful" (pages
103-104 of the decision). These two findings were,
it seems to me, decisive: it was then an unavoid
able conclusion that the policy not to hire insulin
dependent diabetics was based on a bona fide
occupational requirement. In going further and
assessing Mr. Mahon's own personal physical
attributes to determine that notwithstanding his
being an insulin dependent diabetic his limitations,
although real, were under sufficient control, the
Tribunal, in my view, misapplied paragraph 14(a)
of the Act.
For those reasons, I would set aside the
impugned decision and would send the matter
back to the Tribunal for reconsideration on the
basis that, in view of the findings it has already
made with respect to the requirements of the
duties of a trackman and the real limitations of all
insulin dependent diabetics, the refusal by the
applicant to hire the respondent was not a dis
criminatory practice in view of paragraph 14(a) of
the Act.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.